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Immigration Bail and Detention Powers Expanded From January 2018

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OTS Solicitors is highly recommended in the Legal 500 for Immigration and Human Rights law. We have also been selected by the 2017 Global Excellence Awards as the Most Trusted in Immigration Law: UK. We provide the best legal advice to businesses and individuals throughout the UK, South East Asia, Russia and the Middle East.

On 15th January 2018, Schedule 10 of the Immigration Act 2016 came into force. Introducing an entirely new provision of ‘Immigration bail’ and repealing existing powers of temporary admission and release, the new rules ensure that even those with no prospect of being removed from the country can still be put on bail.

The best Immigration solicitors in London are naturally concerned about the increase in power the new rules will grant to the Secretary of State. The issue of Immigration detention and bail regularly featured in the national media last year, due to the often-appalling conditions detainees are being forced to endure.

For example, in November 2017, the Home Office was accused of locking up migrants for up to 13 hours a day in “degrading and insanitary conditions, in breach of their Human Rights”.

Immigration lawyers have laid a challenge in the high court on behalf of detainees at Brook House Immigration Removal Centre, and psychologists have stated that conditions in the facility are not in the best interests of the inmates’ mental health.

This month, Iraqi PhD student, Ahmed Sedeeq made headlines when he described his time in the notorious Morton Hall detention centre. Last year, four inmates died in the facility. Mr Sedeeq stated that conditions in the centre were “dirty” and the accommodation was “tiny”.

Describing conditions in the facility, Mr Sedeek told The Independent:

“'You're woken up in the morning with the guards shining a bright torch in your eyes or a radio blaring in your ears"

Ahmed told the Independent he was sleep deprived for the ten days he spent there, being woken in the middle of the night by the guards shining bright torches in his face, or walking in with their radios crackling loudly, waking the detainees.

“The rest of the detention centre was tiring also, with eating and leisure time strictly controlled Mr Ahmed stated. Meals were three times a day in the centre, with only a set amount of time to get to the kitchen before it closed. If you miss it, you have to go hungry”

One day, an important phone call with his lawyer overran, and Ahmed arrived to find the canteen was shut.

“Luckily, someone had left a small piece of bread on their plate, so I was able to eat that for my lunch", he said.

Restrictions in granting bail

Despite the negative press, the Government is pressing forward on making it even tougher to be granted bail following Immigration detention. Under schedule 10(3), the First-tier tribunal is unable to grant bail for any reason for eight days after a migrant arrives in a detention centre or where removal from the UK is scheduled for within 14 days.

In addition, bail can now be placed on a person who cannot be lawfully detained – an extraordinary power. Furthermore, schedule 10 states:

“A grant of Immigration bail to a person does not prevent the person’s subsequent detention…”

Finally, under schedule 10(1) a person who has been granted bail can be arrested, without a warrant, if an Immigration official or police officer has a reasonable belief the individual is likely to breach their bail conditions.

10(1) An Immigration officer or a constable may arrest without warrant a person on Immigration bail if the Immigration officer or constable—

(a) has reasonable grounds for believing that the person is likely to fail to comply with a bail condition, or

(b) has reasonable grounds for suspecting that the person is failing, or has failed, to comply with a bail condition.

Yes, you read that correctly. The person does not have to have committed the breach to be arrested; the arresting officer or official only has to have a reasonable belief that bail conditions will not be complied with.

There is little doubt that should this power be exercised, it will be challenged on its legality via judicial review. The power granted by this section goes against the fundamental rules of justice ordinary people of Britain take for granted – that is there is a difference between suspicion and evidence.

For example, given the wording of schedule 10(1), it would be reasonable to deduce that an Immigration officer or constable could arrest a person simply because their mere appearance gave grounds for them to believe they would not comply with their bail conditions. Or perhaps the officer doesn’t like the migrant's attitude or demeanour. Could this be ‘reasonable grounds’ for arrest?

A challenge to arrest under schedule 10(1) may be made under Article 5 of the European Convention on Human Rights, which protects a person’s right to liberty and security. In the famed book, The Rule of Law by Tom Bingham, the author states, when discussing the merits of this article:

“There are doubtless those who would wish to lock up all those suspected of terrorist and other serious offences and, in the time-honoured phrase, throw away the key. But a suspect is, by definition, a person against whom no offence has been proved. Suspicions, even reasonably entertained, may prove to be misplaced, as a series of tragic miscarriages of justice has demonstrated. Police offices and security officials can be wrong. It is a gross injustice to deprive of his liberty for significant periods a person who has committed no crime and does not intend to do so. No civilised country should willingly tolerate such injustices”.

When it comes to Immigration detention, one could be forgiven for doubting whether Britain still belongs in the realms of ‘civilised countries’.

OTS Solicitors is one of the most respected Immigration law firms in London and is a Legal 500 leading firm. We are also in the process of applying for recommendation in Chambers and Partners. By making an appointment with one of our Immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today. Contact us on 0203 959 9123 to speak to one of our Immigration consultants.

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